Study On Fraud Identification Of Independent Letter Of Guarantee

Independent guarantee follows the transaction rules of documentary,and the beneficiary only needs to present the documents in accordance with the terms of the guarantee to the guarantor in order to obtain the payment under the guarantee.Due to the independence and documentability of the independent guarantee,the guarantor only needs to check whether the documents are consistent when making payment,without considering whether there is a breach of contract under the underlying transaction.This claim method different from traditional guarantee greatly improves commercial efficiency and is widely used in commercial transactions.However,this method also greatly reduces the fraud cost of the beneficiary,and to some extent encourages the beneficiary to abuse the right of claim and other fraudulent behaviors.With the extensive application of independent guarantee in commercial transactions,the fraud problems of independent guarantee emerge one after another.In order to fight against this kind of fraud and maintain commercial transactions,fraud as the only payment exception of independent guarantee,namely the fraud exception principle came into being.In the application of fraud exception principle,fraud identification of independent guarantee is particularly important.At present,the determination of independent letter of guarantee fraud has not formed a unified standard.In the Provisions of the Supreme People’s Court on Some Issues concerning the Trial of Independent Guarantee issued in 2016,fraud is divided into three types of fictitious underlying transaction,document fraud and abuse of payment claim right by enumeration,which provides a judgment standard for the court’s trial activities.Through the empirical study of judicial cases,it is found that there are still some problems in the determination of independent guarantee fraud.For example,some courts restrict the examination of document sources to a third party,while others do not;Failure to specify the degree of falsification of the documents;The review of the underlying transaction has broken through the limit of limited review;And there is abuse of the bottom-of-the-line clause.There are differences in judicial judgment,mainly because of some deficiencies in China’s existing relevant provisions.For example,the identification of fraud in independent letter of guarantee is lacking in principle,which leads to the ambiguity of the identification standard of fraud.Restricting the subject of document fraud to the third party and not restricting the degree of document fraud results in inconsistent court discretion standards.In addition,the establishment of the bottom clause violates the strict standards of judicial interpretation,leading to the abuse of the clause in judicial trials.Combined with outside independent guarantee fraud two criteria for recognition of the mainstream is given priority to with the objective of "material fraud" and emphasizes subjectivity "beneficiary fraud" standards of analysis,our country independent guarantee fraud first correct the beneficiary of the fraud standard should be adopted as the principle regulation,considering the difficulty of the subjective intent to confirm,can be used deliberately presumption principle;Secondly,for the source of documents in the case of document fraud,it is suggested to cancel the restrictions on the third party,even the documents issued by the beneficiary itself may be identified as document fraud,limiting the degree of document fraud within the substantive scope.Finally,the application of the bottom clause should be limited in the case of abusing the bottom clause,and the behavior of "abusing the right to demand money" should be restricted.In addition,the principle of benefit measurement should be introduced,and provisions on standby letters of credit should be added.